IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DONALD RUTLEDGE, et al.,

Plaintiffs,

vs. Civil Action 2:12-CV-159

Judge Smith

Magistrate Judge King

CLAYPOOL ELECTRIC, INC.,

et al.,

Defendants.

REPORT AND RECOMMENDATION

This matter is now before the Court on plaintiffs’ Motion to

Conditionally Certify the Case as a Collective Action, Doc. No. 8

(“Motion to Conditionally Certify”) and on Defendants’ Motion to

Strike Certain Paragraphs of Plaintiffs’ Affidavits, Doc. No. 13

(“Defendants’ Motion to Strike”), which were referred to the

undersigned for consideration and a Report and Recommendation. Order,

Doc. No. 21. Because it is recommended that the Motion to

Conditionally Certify be denied, it is also recommended that

plaintiffs’ Motion for an Order Equitably Tolling the FLSA Statute of

Limitations for Potential Opt-In Plaintiffs, Doc. No. 25, be denied as

moot.

I. PLAINTIFFS’ ALLEGATIONS AND CLAIMS

Defendant Claypool Electric, Inc. (“Claypool Electric”), an Ohio

corporation, has an annual volume of business exceeding $500,000. 

Collective Action Complaint, Doc. No. 1, ¶¶ 12-13 (“Complaint”). 

During all relevant times, Claypool Electric employed individuals who

performed construction and clerical work, including ordering

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construction materials by mail, phone or fax; accepting payment for

services from customers; and performing work on federally funded

construction products. Id. at ¶ 13. 

Defendant Charles C. Claypool [“defendant Claypool”] was, at all

times relevant to the Complaint, the CEO of Claypool Electric and

maintained a significant ownership interest in Claypool Electric. Id.

at ¶ 16. Defendant Claypool1 controlled day-to-day business functions

such as setting salaries and pay scales of Claypool Electric’s

employees, which included plaintiffs Donald Rutledge, Lee Whitlatch

and Charles Cox. Id. at ¶¶ 3, 6, 9, 16. Plaintiff Rutledge worked

initially for defendants as an apprentice electrician and later as a

journeyman electrician construction worker. Id. at ¶ 3. Plaintiff

Whitlatch first worked for defendants as a journeyman electrician

construction worker and later as a foreman construction worker. Id.

at ¶ 6. Plaintiff Cox worked as an apprentice construction worker. 

Id. at ¶ 9.

On February 21, 2012, plaintiffs filed this collective action

under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”)

on behalf of themselves and all other similarly situated individuals

against defendants for unpaid wages and overtime pay. Plaintiffs also

assert a claim under O.R.C. § 4113.15 against Claypool Electric. 

Complaint, ¶¶ 59-62. Plaintiffs define the three collective classes

that they seek to represent as follows:

a. All current and former Claypool Electric, Inc.

employees employed in the foreman or similar

classifications who worked in excess of 40 hours per

1

The Court will refer to Claypool Electric and defendant Claypool,

collectively, as “defendants.”

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week and were not compensated for each and every hour

worked in excess of 40 hours per week at one and onehalf times his regular rate of pay; and

b. All current and former Claypool Electric, Inc.

employees that were paid in “comp time,” i.e.,

received paid time off, in lieu of being compensated

for each and every hour worked in excess of 40 hours

per workweek at one and one-half times his regular

rate of pay; and

c. All current and former Claypool Electric, Inc.

employees whose overtime rate of pay was not

calculated by using the weighted average of all hourly

rates paid in one workweek. 

Id. at ¶ 20. 

II. MOTION TO CONDITIONALLY CERTIFY AND DEFENDANTS’ MOTION TO STRIKE

A. Standard for Conditional Certification

Plaintiffs move to conditionally certify this case under 29

U.S.C. § 216(b), which permits employees, under some circumstances, to

collectively sue an employer for unpaid overtime pay. See, e.g.,

Harrison v. McDonald’s Corp., 411 F. Supp.2d 862, 864-65 (S.D. Ohio

2005). Section 216(b) specifically provides:

Any employer who violates [the minimum wage or maximum hours

provisions of this title] shall be liable to the employee or

employees affected in the amount of their unpaid wages, or

their unpaid overtime compensation, as the case may be, and

in an additional equal amount as liquidated damages. . . .

An action to recover [this] liability . . . may be

maintained against any employer (including a public agency)

in any Federal or State court of competent jurisdiction by

any one or more employees for and in behalf of himself or

themselves and other employees similarly situated. 

29 U.S.C. § 216(b). The United States Court of Appeals for the Sixth

Circuit has construed Section 216(b) as establishing two requirements

for a representative action:

1) the plaintiffs must actually be “similarly situated,” and

2) all plaintiffs must signal in writing their affirmative

consent to participate in the action. 29 U.S.C. § 216(b);

Hoffmann-La Roche, Inc., v. Sperling, 493 U.S. 165, 167-68,

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110 S. Ct. 482, 107 L. Ed. 2d 480 (1989). Similarly

situated persons are permitted to “opt into” the suit. This

type of suit is called “collective action.” It is

distinguished from the opt-out approach utilized in class

actions under Fed. R. Civ. P. 23.

Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). 

Certification in FLSA collective actions often follows two steps:

conditional and final certification. Harrison, 411 F. Supp.2d at 864-

65. See also Frye v. Baptist Mem. Hosp., Inc., No. 11-5648, 2012 U.S.

App. LEXIS 17791, at *6 (6th Cir. Aug. 21, 2012). The first stage,

conditional certification, occurs at the beginning of the discovery

process and the second stage, final certification, occurs after all

class plaintiffs have decided whether to opt-in and after all or most

discovery has concluded. Comer, 454 F.3d at 546; White v. Baptist

Mem’l Health Care Corp., No. 11-5717, 2012 U.S. App. LEXIS 2275, at

*18 (6th Cir. Nov. 6, 2012) (citing Comer, 454 F.3d at 546). 

“District courts use a ‘fairly lenient standard’ that ‘typically

results in conditional certification of a representative class’ when

determining whether plaintiffs are similarly situated during the first

stage of the class certification process.” White, 2012 U.S. App.

LEXIS 2275, at *18 (citing Comer, 454 F.3d at 547). If conditional

certification is granted, the putative class members are given notice

and an opportunity to opt in to the action. See, e.g., Heaps v.

Safelite Solutions, LLC, No. 2:10-cv-729, 2011 U.S. Dist. LEXIS

150313, at *4-5 (S.D. Ohio Dec. 22, 2011). However, certification at

this stage “is conditional and by no means final.” Comer, 454 F.3d at

546 (internal quotation marks and citations omitted). 

The second stage, or final certification, imposes a “stricter

standard[,]” id. at 547, “because it occurs near the end of

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discovery.” Frye, 2012 U.S. App. LEXIS 17791, at *7. At this stage,

“trial courts examine more closely the question of whether particular

members of the class are, in fact, similarly situated.” Comer, 454

F.3d at 547. “Plaintiffs generally must produce ‘more than just

allegations and affidavits’ demonstrating similarity in order to

achieve final certification.” Frye, 2012 U.S. App. LEXIS 17791, at

*6. In addition, at this stage, a defendant may, if appropriate, file

a motion to decertify. Swigart v. Fifth Third Bank, 276 F.R.D. 210,

213 (S.D. Ohio 2011).

B. Defendants’ Motion to Strike

In support of their Motion to Conditionally Certify, plaintiffs

offer the Affidavit of Lee Whitlatch (“Whitlatch Affidavit”), the

Affidavit of Charles Cox (“Cox Affidavit”) and the Affidavit of Donald

Rutedge [sic] (“Rutledge Affidavit”), attached as Exhibits 1, 2 and 3,

respectively, to the Motion to Conditionally Certify. Defendants seek

to strike certain paragraphs from each of these affidavits, which the

Court will address in turn.

1. The Whitlatch Affidavit

a. Hearsay

Defendants move to strike Paragraphs 5 and 6 from the Whitlatch

Affidavit, arguing that these statements are based on impermissible

hearsay. Defendants’ Motion to Strike, pp. 1-3; Defendants’ Reply in

Support of Its Motion to Strike Certain Paragraphs of Plaintiffs’

Affidavits, Doc. No. 17, pp. 1-4 (“Reply in Support of Motion to

Strike”). Defendants note that this Court has previously determined

that it may consider only admissible evidence in connection with a §

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216(b) motion. Defendants’ Motion to Strike, pp. 2-3 (citing, inter

alia, Harrison v. McDonald’s Corp., 411 F. Supp.2d 862; Landsberg v.

Acton Enters., No. C2-05-500, 2006 U.S. Dist. LEXIS 90716 (S.D. Ohio

Dec. 15, 2006)). Plaintiffs oppose Defendants’ Motion to Strike,

arguing that none of the statements in any of the affidavits

constitute inadmissible hearsay. Plaintiffs’ Opposition to Motion to

Strike Certain Paragraphs of Plaintiffs’ Affidavits, Doc. No. 16

(“Opposition to Motion to Strike”).2

Hearsay is a statement that “(1) the declarant does not make

while testifying at the current trial or hearing; and (2) a party

offers in evidence to prove the truth of the matter asserted in the

statement.” Fed. R. Evid. 801(c). Defendants are correct that this

Court has previously held that “hearsay statements cannot be

considered in connection with a Plaintiff’s § 216(b) motion for

determining whether other employees are similarly situated.” 

Harrison, 411 F. Supp.2d at 866. See also id. (“Courts . . . have

repeatedly held that only admissible evidence may be considered in

connection with a § 216(b) motion.”); Landsberg, 2006 U.S. Dist. LEXIS

90716, at *12-14 (affirming recommendation that, inter alia, excluded

inadmissible hearsay evidence at conditional certification stage). 

Accordingly, this Court will not consider hearsay evidence in

2

Plaintiffs also purport to “incorporate their Reply in Support of their

Motion for Conditional Certification [Doc. No. 15] to the extent relevant to

the Court ruling upon Defendants’ Motion to Strike.” Opposition to Motion to

Strike, p. 1 n.1. Other than this general reference, plaintiffs do not direct

the Court to any particular page or argument in their reply in support of the

motion to conditionally certify, which contains 20 pages of briefing and 27

pages of exhibits. Although plaintiffs apparently expect the Court to wade

through these arguments and documents looking for support for plaintiffs’

opposition to Defendants’ Motion to Strike, the Court declines to do so. The

Court will therefore limit its consideration to the briefing offered

specifically in connection with Defendants’ Motion to Strike.

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determining whether plaintiffs are similarly situated to putative

class members. 

In reaching this decision, this Court is mindful of plaintiffs’

argument that some courts do consider hearsay evidence at the

conditional certification stage. Opposition to Motion to Strike, pp.

4-5 (citing Salomon v. Adderley Indus., 847 F. Supp. 2d 561, 565 (S.D.

N.Y. 2012); Winfiend v. Citibank, N.A., No. 10 Civ. 5950, 2012 U.S.

Dist. LEXIS 16449, at *11-12 (S.D. N.Y. Jan. 27, 2012)). See also

Jesiek v. Fire Pros, Inc., 275 F.R.D. 242, 246-47 (W.D. Mich. 2011). 

However, plaintiffs have nevertheless failed to persuade this Court

that its prior decisions rejecting hearsay at this stage were in

error. See, e.g., Landsberg, 2006 U.S. Dist. LEXIS 90716, at *13

(“[N]umerous decisions support the still-lenient position that limits

consideration to admissible evidence in connection with conditional

certification of a collective action under § 216(b).”) (collecting

cases). See also Kerr v. Hurd, 694 F. Supp. 2d 817, 843 (S.D. Ohio

2010) (“In the absence of supervening case authority from the Supreme

Court or the Court of Appeals, this Court is bound, under the doctrine

of stare decisis, to follow decisions of its own judges.”).

Turning to the merits of Defendants’ Motion to Strike, plaintiff

Whitlatch, an hourly paid crew leader3 since March 2011, avers in

pertinent part:

5. To the best of my knowledge, all employees in the crew

leader job classification are required to perform the

same additional, unpaid duties that I am.

6. My knowledge is based upon working with the other Crew

3

Plaintiff Whitlatch believes that a “crew leader” is “another name for

a ‘foreman’ in the industry.” Whitlatch Affidavit, ¶ 1.

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Leaders, I conversed with them concerning all of us

staying after the work day, taking home prints to lay

out work, meet with the bosses to pick up materials

and tools, and speaking with superiors on the phone

after hours.

Whitlatch Affidavit, ¶¶ 5-6. Defendants argue that paragraph 6

contains hearsay because it is based on plaintiff Whitlatch having

“conversed with [other unidentified Crew Leaders]” about alleged tasks

performed that day. Defendants’ Motion to Strike, p. 3. Because the

“knowledge” in paragraph 5 is based on the hearsay contained in

paragraph 6, defendants contend that both paragraphs should be

stricken. Id. Plaintiffs disagree, arguing that the statements in

paragraphs 5 and 6 not hearsay under Fed. R. Evid. 801(d)(2)(D)4

because it was defendants’ employees who made these statements to

plaintiff Whitlatch and because the challenged statements were based

on plaintiff Whitlatch’s perceptions “and concerned matters within and

relative to the employees’ employment[.]” Opposition to Motion to

Strike, pp. 2, 4. In reply, defendants argue that (1) Harrison and

Landsberg concluded that similar statements were inadmissible hearsay

and, in any event, (2) paragraphs 5 and 6 do not meet the requirements

of Fed. R. Evid. 801(d)(2)(D) because plaintiffs have not shown that

those statements were made within the scope of the employees’

employment relationship during the existence of such a relationship. 

Reply in Support of Motion to Strike, pp. 2-5. 

Defendants’ arguments are well-taken. In Harrison, the defendant

employer moved to strike portions of affidavits offered by plaintiff

4

Under 801(d)(2)(D), a statement is not hearsay if “[t]he statement is

offered against the opposing party and . . . was made by the party’s agent or

employee on a matter within the scope of that relationship and while it

existed.”

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at the conditional certification stage. Harrison, 411 F. Supp.2d at

865. In particular, the defendant employer argued that the court

should strike as inadmissible hearsay an affiant’s statement that “I

frequently overheard several of my co-workers complain about shortages

in their paychecks[.]” Id. at 866-67. The plaintiff argued

unsuccessfully that this statement was admissible under the Fed. R.

Evid. 803(3) hearsay exception.5 Id. at 866-67. The Harrison court

rejected the suggestion that this statement was admissible simply

because it was based on the affiant’s “‘personal observations’ of his

co-workers’ complaints. The mere fact that he [the affiant] was

present when the complaints were made does not make the statements

admissible.” Id. The court concluded that plaintiff’s “reasoning,

taken to its logical conclusion, would completely swallow the hearsay

rule.” Id. at 867.

The Harrison court, however, went on to conclude that another

statement in the same affidavit was admissible as an admission of a

party opponent under Fed. R. Civ. P. 801(d)(2)(D). Id. Specifically,

the affiant averred that “[s]everal of my co-workers advised me that

this practice [manually reducing the number of hours that employees

had reported working] frequently occurred, including one of the

Restaurant managers, Carol Farris.” Id. According to the Harrison

court, this statement implied that Ms. Farris was a manager at the

5

This exception provides that 

A statement of the declarant’s then-existing state of mind (such

as motive, intent, or plan) or emotional, sensory, or physical

condition (such as mental feeling, pain, or bodily health), but

not including a statement of memory or belief to prove the fact

remembered or believed unless it relates to the validity or terms

of the declarant’s will.

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time that the affiant worked there. Id. The court also presumed that

“statements concerning payment of employees are matters within the

scope of Ms. Farris’s agency or employment relationship, and matters

about which she, as a manager, would have personal knowledge.” Id. 

In so finding, the court concluded that the affiant’s statement was

based on an adequate foundation and was admissible as an admission of

a party opponent under Fed. R. Civ. P. 801(d)(2)(D). Id.

In Landsberg, this Court affirmed a magistrate judge’s

recommendation excluding inadmissible hearsay evidence contained in an

affidavit. Landsberg, 2006 U.S. Dist. LEXIS 90716, at *11-14. In

that case, the affidavit of the plaintiff, a store manager, contained

various statements made by other managers regarding the defendant

employer’s pay policy. Landsberg v. Acton Enter., Inc., No. 2:05-cv0500, 2006 U.S. Dist. LEXIS 23439, at *1-2, 10 (S.D. Ohio Mar. 22,

2006), adopted and affirmed by Landsberg, 2006 U.S. Dist. LEXIS 90716. 

The Landsberg court concluded that these statements, which plaintiff

recalled from a dinner meeting with other managers, amounted to

inadmissible hearsay that could not be used to determine whether

employees were similarly situated under Section 216(b). Id. at *10-

11. 

Here, plaintiff Whitlatch’s “knowledge,” as claimed in Paragraph

5, that defendant requires other employees in the “crew leader job

classification” to perform certain duties without compensation comes

from plaintiff Whitlatch’s conversations with “other Crew leaders”

about the performance of these duties. Whitlatch Affidavit, ¶ 6. 

Without more, these statements appear to be inadmissible hearsay. 

Although plaintiffs assert that the statements are not hearsay under

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Rule 801(d)(2)(D), they offer no other evidence to support this

assertion. In determining whether or not Rule 801(d)(2)(D) applies,

the Court must determine “whether there is evidence that the

unidentified declarants were speaking on a matter within the scope of

their employment.” Back v. Nestlé USA, Inc., 694 F.3d 571, 578 (6th

Cir. 2012). In making this determination, the “statement must be

considered but does not by itself establish . . . the existence or

scope of the relationship under [Rule 801(d)(2)(D)].” Fed. R. Evid.

801(d)(2). “Outside evidence sufficient to satisfy Rule

801(d)(2)(D)’s scope requirement could come from the ‘circumstances

surrounding the statement, such as the identity of the speaker [or]

the context in which the statement was made.’” Back, 694 F.3d at 578

(quoting Fed. R. Evid. 801 advisory committee’s notes, 1997

Amendment). The party seeking to admit statements under Rule

801(d)(2)(D) bears the burden of proving admissibility. Liadis v.

Sears, Roebuck & Co., No. 01-3230, 47 Fed. Appx. 295, at *303 (6th

Cir. Sept. 17, 2002) (citing Mitroff v. Xomox Corp., 797 F.2d 271, 275

(6th Cir. 1986)). 

As in Landsberg, there are no circumstances in this case

establishing that the statements about non-payment for performing

certain duties fell within the scope of the unidentified crew leaders’

duties. Stated differently, nothing in the record permits the Court

to presume that payroll practices or procedures are matters of which

crew leaders, i.e., foremen, would have personal knowledge. Cf.

Whitlatch Affidavit, ¶¶ 2 (listing unpaid duties that include “review

plans, review prints, and plan work. . . . and provide telephonic

updates to superiors”), 6 (describing alleged unpaid after work hours

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as “taking home prints to lay out work, meet with the bosses to pick

up materials and tools, and speaking with superiors on the phone after

hours”). Because it is not apparent that these employees were hired

to describe their work duties, their statements in that regard did not

fall within the ambit of Rule 801(d)(2)(D), Paragraphs 5 and 6 amount

to impermissible hearsay. 

Plaintiffs’ reliance on Lacy v. Reddy Elec. Co., No. 3:11-cv-52,

2011 U.S. Dist. LEXIS 142050, at *11-13 (S.D. Ohio Dec. 9, 2011) does

not militate a different result. See Opposition to Motion to Strike,

pp. 1-2. Plaintiffs represent that the Lacy court “consider[ed]

plaintiffs’ observations of other employees’ work.” Id. at 2. 

However, plaintiffs make no effort to explain how the facts and

evidence in Lacy are similar to this case. Indeed, the Lacy court

relied on deposition testimony and exhibits, not the plaintiffs’

declarations,6 to support its conclusion that the plaintiffs made a

“modest factual showing” that they are similarly situated to other

employees. Lacy, 2011 U.S. Dist. LEXIS 142050, at *13-14. Moreover,

documentary evidence supported at least one portion of a plaintiff’s

testimony. Id. at *14-15 (citing to deposition exhibit). Based on

the present record, the Court cannot say that Lacy requires

consideration of what is otherwise hearsay contained in Paragraphs 5

and 6 of the Whitlatch Affidavit, particularly in light of Harrison

and Landsberg. Accordingly, the Court will disregard Paragraphs 5 and

6 of the Whitlatch Affidavit when determining whether employees are

6

The Lacy court specifically rejected the plaintiffs’ declarations that

addressed whether the plaintiffs were similarly situated, finding those

declarations to be conclusory. Id. at *11-12.

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similarly situated. 

b. Speculation

Defendants also move to strike Paragraph 11 from the Whitlatch

Affidavit as speculative. Defendants’ Motion to Strike, pp. 3-4. 

Speculative statements offered in connection with a Section 216(b)

motion may not form a basis of conditional certification. See, e.g.,

Landsberg, 2006 U.S. Dist. LEXIS 90716, at *3; Harrison, 411 F.

Supp.2d at 871.

In paragraph 11, plaintiff Whitlatch avers:

11. I know that at least 3-4 other employees working on

the River Valley Stadium Project that were required to

work hours in excess of 40 hours per workweek and were

required to accept compensatory time in lieu of

payment in legal tender for each and every hour they

worked in excess of 40 per workweek.

Whitlatch Affidavit, ¶ 11. Defendants argue that this paragraph is

speculative and should be disregarded because it “does not evidence

any basis upon which to conclude that Whitlatch had personal knowledge

of others’ compensation[.]” Defendants’ Motion to Strike, p. 5. 

This Court disagrees. In statements unchallenged by defendants,

plaintiff Whitlatch first avers that “there are at least 20 employees

classified as crew leaders at Claypool Electric[.]” Whitlatch

Affidavit, ¶ 4. Plaintiff Whitlatch also avers that, as a crew

leader, he “worked on one project, the River Valley Stadium Project,

and my additional, unpaid duties, did not change depending upon the

project to which I was assigned.” Id. at ¶ 3. While plaintiff

Whitlatch was employed by Claypool and was working on the River Valley

Stadium Project, his project manager advised him that “Claypool was

eliminating any and all overtime payments for work.” Id. at ¶ 7. 

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Plaintiff avers that, notwithstanding this change, “I was required to

work hours in excess of 40 hours per workweek, but was not compensated

in legal tender for that time[,]” and instead worked for compensatory

time. Id. at ¶¶ 8-9. Reading Paragraph 11 in light of these other

statements, the clear implication is that plaintiff Whitlatch knows

from personal experience and observation while working on the River

Valley Stadium Project that other employees on that project also

worked in excess of 40 hours of week. Moreover, reading the Whitlatch

Affidavit as a whole, the Court understands that plaintiff’s knowledge

that those other employees were required to accept compensatory time

in lieu of monetary compensation arises from the project leader’s

statement that Claypool had eliminated all payment for overtime. See

id. at ¶ 7. Accordingly, the Court rejects defendants’ assertion that

Paragraph 11 of the Whitlatch Affidavit is speculative. 

2. The Cox Affidavit

Defendants also argue that Paragraph 6 of the Cox Affidavit is

speculative. Defendants’ Motion to Strike, p. 5. In Paragraph 6,

plaintiff Cox avers:

6. I know of at least one other employees [sic] working

on the South Gallia High School Athletic Complex

Project who were [sic] required to work hours in

excess of 40 hours per workweek and were required to

accept compensatory time in lieu of payment in legal

tender for each and every hour they worked in excess

of 40 per workweek[.]

Cox Affidavit, ¶ 6. 

As it did in connection with Paragraph 11 of the Whitlatch

Affidavit, the Court rejects defendants’ contention that Paragraph 6

of the Cox Affidavit is based on mere speculation. Plaintiff Cox, an

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apprentice electrician construction worker, worked on the South Gallia

High School Athletic Complex Project while employed by Claypool. Cox

Affidavit, ¶¶ 1-2. He avers that, while working on that project, his

project manager advised him that “Claypool was eliminating any and all

overtime payments for work.” Id. at ¶ 2. Plaintiff Cox avers that he

nevertheless “was required to work hours in excess of 40 hours per

workweek, but was not compensated in legal tender for that time” and

instead worked for compensatory time. Id. at ¶¶ 3-4. Taking the Cox

Affidavit as a whole, the clear implication is that plaintiff Cox

knows from personal experience and observation while working on the

South Gallia High School Athletic Complex Project that other employees

also worked more than 40 hours a week. Moreover, the Court presumes

that plaintiff’s knowledge that those other employees were required to

accept compensatory time in lieu of monetary compensation arises from

the project leader’s statement that Claypool had eliminated all

payment for overtime. See id. at ¶ 2. Accordingly, the Court rejects

defendants’ assertion that Paragraph 6 of the Cox Affidavit is

speculative. 

3. The Rutledge Affidavit

Finally, defendants seek to strike Paragraphs 3 and 10 of the

Rutledge Affidavit. Defendants’ Motion to Strike, pp. 5-6. In those

paragraphs, plaintiff Rutledge avers the following in support of

plaintiffs’ allegations that the overtime rate of pay for a certain

class of employees was not calculated by using the weighted average of

all hourly rates of pay in one work week:

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3. Other Weighted Average Class SSEs7 and I occasionally

were paid different rates for different types of work

during workweeks in which we worked in excess of forty

hours.

***

10. I also spoke with several other current and former

employees of Claypool Electric who confirmed they also

were paid overtime at their private-hour rate, instead

of at some averaged rate based upon all their

different wage rates within that workweek.

Rutledge Affidavit, ¶¶ 3, 10. In moving to strike these paragraphs,

defendants contend that Paragraph 10 contains inadmissible hearsay and

that Paragraph 3 is based on that hearsay. Defendants’ Motion to

Strike, pp. 5-6. Plaintiff disagrees that these paragraphs are

inadmissible arguing, first, that defendants’ challenges to these

statements are “mooted by the fact that the Defendants admitted, in

their Answer, that its’ [sic] policy is to pay different rates for

both prevailing wage and non prevailing wage work. (Doc. 5, Answer,

at ¶[] 52, 53.)” Opposition to Motion to Strike, p. 3. Plaintiffs

next contend that, to the extent that plaintiff Rutledge’s knowledge

was based upon the conversations referenced in Paragraph 10, those

conversations “are not, by definition, hearsay because they were made

by employees of Defendants and concerned matters related to their

employment.” Id. Plaintiffs also apparently take the position that

the statements about pay rates are not hearsay because they “were

based upon perception[.]” Id. at 4.

Plaintiffs’ arguments are not well-taken. First, even if

plaintiffs were correct that defendants’ Answer, Doc. No. 5,

7

The Rutledge Affidavit does not define “SSEs,” but the Court, after

reviewing the record, understands that plaintiffs intend that term to refer to

“similarly situated employees.” See, e.g., Complaint, ¶ 26. 

16

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corroborates plaintiff Rutledge’s statements in Paragraphs 3 and 10,

that corroboration does not moot defendants’ challenges to the

Rutledge Affidavit. Stated differently, the existence of other

evidence, which is not even referenced in the Rutledge Affidavit, does

not cure the hearsay deficiencies, if they exist, in Paragraphs 3 and

10. 

It appears, as defendants contend, that plaintiff Rutledge’s

knowledge of the facts referred to in Paragraph 3 (regarding the pay

rate of other employees) is based on conversations described in

Paragraph 10. Therefore, the Court must determine whether the

statements in Paragraph 10 constitute hearsay.

Plaintiffs urge this Court to conclude that those statements are

not hearsay pursuant to Fed. R. Evid. 801(d)(2)(D). Opposition to

Motion to Strike, pp. 3-4. However, as with the Whitlatch Affidavit

discussed supra, plaintiff offers no evidence to support their

position. More specifically, nothing in the Rutledge Affidavit

suggests that the “current or former employees of Claypool Electric”

referred to in Paragraph 10 were speaking on matters that fell within

the scope of their employment. See Back v. Nestlé USA, Inc., 694 F.3d

571, 578 (6th Cir. 2012). Indeed, if the conversation took place with

former Claypool employees, those individuals were certainly not acting

with the scope of their employment because they were no longer

employed by Claypool. Moreover, nothing in the record permits the

Court to presume that defendants’ payroll practices or pay rates are

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matters about which these unidentified8 current employees would have

personal knowledge. Because plaintiffs have not established that the

challenged statements fell within the scope of employment, and

therefore not within the ambit of Rule 801(d)(2)(D), Paragraph 3 – to

the extent that it relates to other employees – and Paragraph 10 in

its entirety amount to impermissible hearsay. 

Finally, as previously noted, plaintiffs argue that the

statements referring to conversations that plaintiff Rutledge had with

other employees are not hearsay because they were “based upon

perception” of those conversations. That argument is equally

unavailing. “The mere fact that [plaintiff Rutledge] was present when

the [other employees’] complaints were made does not make the

statements admissible.” Harrison, 411 F. Supp.2d at 866-67. As this

Court previously observed, “[t]his reasoning, carried to its logical

conclusion, would completely swallow the hearsay rule.” Id. at 867. 

Accordingly, the Court will disregard Paragraph 3 to the extent that

it refers to other employees9 and will disregard Paragraph 10 of the

Rutledge Affidavit when determining whether employees are similarly

situated. 

C. Motion to Conditionally Certify

8

Plaintiff Rutledge avers that he cannot disclose the names of the

current and former employees “because I expect they would likely be

disciplined for violating that Company policy [that contains a strict pay

secrecy clause], regardless of its likely illegality under the National Labor

Relations Act.” Rutledge Affidavit, ¶ 11. Defendants object strenuously to

this statement, disagreeing with plaintiffs’ characterization of such a policy

and arguing at length why the policy, if it exists, is irrelevant to the

present issues. Reply in Support of Motion to Strike, pp. 5-7. Having

concluded that a portion of Paragraph 3 and Paragraph 10 are inadmissible, the

Court need not, and does not, address the parties’ dispute at this time. 

9

In other words, the Court will consider the portion of Paragraph 3 that

avers that plaintiff Rutledge was paid different rates for different types of

work during the workweeks.

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Having determined what evidence the Court may consider at this

stage, the Court turns to the merits of the Motion to Conditionally

Certify. As discussed supra, plaintiffs have the burden of showing at

the conditional certification stage that 1) the plaintiffs are

actually “similarly situated,” and “2) all plaintiffs must signal in

writing their affirmative consent to participate in the action.” 454

F.3d at 546. Here, plaintiffs seek to conditionally certify their

claims as a collective action on behalf of three classes. 

1. Similarly situated

Although neither the statute nor the Sixth Circuit has

specifically defined the meaning of “similarly situated” employees,

the Sixth Circuit has stated that “plaintiffs are similarly situated

when they suffer from a single, FLSA-violating policy, and when proof

of that policy or of conduct in conformity with that policy proves a

violation as to all plaintiffs.” O'Brien v. Ed Donnelly Enterprises,

Inc., 575 F.3d 567, 585 (6th Cir. 2009). 

“District courts use a ‘fairly lenient standard’ that ‘typically

results in conditional certification of a representative class’ when

determining whether plaintiffs are similarly situated during the first

stage of the class certification process.” White v. Baptist Mem’l

Health Care Corp., No. 11-5717, 2012 U.S. App. LEXIS 2275, at *18 (6th

Cir. Nov. 6, 2012) (citing Comer, 454 F.3d at 547). Although courts

are split on what this showing requires, see, e.g., Harrison v.

McDonald’s Corp., 411 F. Supp.2d at 865(collecting cases), this Court

has previously held that it should not grant conditional certification

“unless the plaintiff presents some evidence to support her

allegations that others are similarly situated[,]” id. at 868, which

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requires only a “modest factual showing.” Id. at 865 (citing Olivo v.

GMAC Mortgage Co., 374 F. Supp.2d 545, 548 (E.D. Mich. 2004)). In

other words, “‘plaintiffs must establish a colorable basis for their

claim that a class of similarly situated’ plaintiffs exists.” Id.

(quoting Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 266 (D.

Minn. 1991)). 

This type of evidence includes “‘factors such as whether

potential plaintiffs were identified; whether affidavits of potential

plaintiffs were submitted; whether evidence of a widespread

discriminatory plan was submitted, and whether as a matter of sound

class management, a manageable class exists.’” Lewis v. Huntington

Nat’l Bank, 789 F. Supp. 2d 863, 868 (S.D. Ohio 2011) (quoting Heaps

v. Safelite Solutions, LLC, No. 2:10-cv-729, 2011 U.S. Dist. LEXIS

150313, at *4-5 (S.D. Ohio Dec. 22, 2011)). In addition, this Court

has previously concluded that, at this lenient first stage, “‘the

named plaintiff[s] need only show that [their] position[s] [are]

similar, not identical, to the positions held by the putative class

members.’” Lewis, 789 F. Supp. 2d at 867-68 (quoting Pritchard v.

Dent Wizard Intern. Corp., 210 F.R.D. 591, 595 (S.D. Ohio 2002)). 

Finally, at this first stage, “courts ‘do not resolve factual

disputes, decide substantive issues on the merits, or make credibility

determinations.’” Shipes v. Amurcon Corp., No. 10-14943, 2012 U.S.

Dist. LEXIS 39794, at *12 (E.D. Mich. Mar. 23, 2012) (citing

Wlotkowski v. Mich. Bell Tel. Co., 267 F.R.D. 213, 219 (E.D. Mich.

2010)). 

With this standard in mind, the Court turns to plaintiffs’

proposed classes.

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a. Crew leader class

Section 207(a)(1) of the FLSA “‘provides that employers may not

require employees to work more than forty hours per workweek unless

those employees receive overtime compensation at a rate of not less

than one-and-one half times their regular pay[.]’” Ellington v. City

of E. Cleveland, 689 F.3d 549, 552 (6th Cir. 2012) (quoting

Baden-Winterwood v. Life Time Fitness, Inc., 566 F.3d 618, 626 (6th

Cir. 2009)). In the instant case, plaintiffs first seek to

conditionally certify a class of crew leaders (foremen) “or similar

classifications who worked in excess of 40 hours per week and were not

compensated for each and every hour worked in excess of 40 hours per

week at one and one-half times his regular rate of pay [(“crew leader

class”).]” Complaint, ¶ 20. In attempting to make the requisite

modest factual showing that plaintiffs are similarly situated to such

potential class members, plaintiffs offer the Whitlatch Affidavit. 

According to plaintiff Whitlatch, a crew leader, he “worked a number

of hours at the direction of and for the benefit of Defendants without

being compensated.” Whitlatch Affidavit, ¶ 2. On average, plaintiff

Whitlatch worked approximately 5 to 6 hours per week without pay. Id. 

Claypool Electric required plaintiff Whitlatch to continue to work in

excess of 40 hours per week even after his project manager advised him

that Claypool Electric was eliminating overtime payment. Id. at ¶¶ 7-

8. Even though Claypool Electric required plaintiff Whitlatch to

accept compensatory time at the rate of one hour of paid leave per one

hour of overtime work, plaintiff Whitlatch avers that he actually

received only approximately 12 hours of paid leave for 20 hours of

overtime work. Id. at ¶¶ 9-10.

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Although the Whitlatch Affidavit is evidence that plaintiff

Whitlatch was not paid at one and one-half times his regular rate of

pay for time worked in excess of 40 hours as a crew leader, it does

not support a conclusion that there were other similarly situated crew

leaders. For example, plaintiff Whitlatch avers that he knows that

“at least 3-4 other employees working on the River Valley Stadium

Project [] were required to work in excess of 40 hours per workweek

and were required to accept compensatory time in lieu” of overtime

payment. Id. at ¶ 11. However, it is not clear whether these

unidentified “3-4 other employees” are crew leaders. To assume that

these unnamed employees are crew leaders would amount to nothing more

than speculation, which is not a permissible basis for conditional

certification. See, e.g., Landsberg, 2006 U.S. Dist. LEXIS 90716, at

*3; Harrison, 411 F. Supp.2d at 871. Moreover, defendants offer sworn

statements from ten crew leaders who state that they “have not been

directed, required, pressured or encouraged by anyone at Claypool to

work without” accurately reporting all of the time worked. Exhibit 2,

pp. 1-10. Based on the present record, these sworn statements are

uncontroverted. Accordingly, plaintiffs have not made even a modest

factual showing that plaintiff Whitlatch is similarly situated to

other crew leaders.10

In so concluding, the Court notes that plaintiffs ask “this Court

to hold its decision in abeyance on the crew leader class until

Plaintiffs have an opportunity to conduct discovery.” Plaintiffs’

10For the reasons discussed supra, the Court will not consider

Paragraphs 5 and 6 of the Whitlatch Affidavit, which purported to address the

duties and overtime work of other crew leaders. 

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Reply in Support of Motion to Conditionally Certify the Case As a

Collective Action, Doc. No. 15, p. 15 (“Reply in Support of Motion to

Conditionally Certify”). Plaintiffs’ request, which is buried in the

middle of a brief, is essentially a motion for discovery. Plaintiffs

base their motion for discovery on the apparent belief that, should

the Court disregard Paragraphs 5 and 6 of the Whitlatch Affidavit, the

Court then has “elect[ed] not to follow the line of cases holding such

[hearsay] statements are properly considerable at this juncture in the

litigation and instead impose[s] some heightened evidentiary

requirement, such as that imposed by Rule 56 of the Federal Rules of

Civil Procedure[.]” Reply in Support of Motion to Conditionally

Certify, p. 15. The Court rejects plaintiffs’ argument in this

regard. Plaintiffs’ request to hold in abeyance the issue of

certification, as it relates to the crew leader class, pending

discovery is without merit.

b. Comp time class

As noted supra, the FLSA prohibits employers from requiring 

employees to work more than forty hours per workweek unless those

employees receive overtime compensation of at least one-and-one half

times their regular pay. Ellington, 689 F.3d at 552. However, the

FLSA also permits public agencies to grant compensatory time off at a

rate of not less than one and one-half hours for each hour of overtime

worked in lieu of cash overtime compensation. See 29 U.S.C. § 207 (o)

(1); Aiken v. City of Memphis, 190 F.3d 753, 756 (6th Cir. 1999). See

also Beck v. City of Cleveland, Ohio, 390 F.3d 912, 917 (6th Cir.

2004) (“Section 207(o) of the FLSA was enacted in 1985 as part of

congressional amendments to address the financial hardships that the

23

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FLSA imposed upon states and their political subdivisions.”). 

In the case presently before the Court, plaintiffs argue that

Section 207(o) permits only public employers to use compensatory time; 

because Claypool Electric is a private employer, plaintiffs contend,

it cannot utilize the compensatory time provision of the statute. 

See, e.g., Reply in Support of Motion to Conditionally Certify, pp.

15-16. Plaintiffs seek to conditionally certify a class of employees

who “were paid in ‘comp time,’ i.e., received paid time off, in lieu

of being compensated for each and every hour worked in excess of 40

hours per workweek at one and one-half times his regular rate of pay

[(“comp time class”).]” Complaint, ¶ 20. In attempting to make the

required modest factual showing that plaintiffs are similarly situated

to such potential class members, plaintiffs offer the Whitlatch

Affidavit and the Cox Affidavit. Both plaintiffs Whitlatch and Cox

aver that, while working for Claypool Electric on two projects, they

wee required to accept compensatory time at the rate of one-to-one

instead of being compensated at one and one-half times their regular

rate of pay. Whitlatch Affidavit, ¶¶ 2-3, 8-10; Cox Affidavit, ¶¶ 2-

5. More specifically, plaintiff Whitlatch11 avers that, while working

on the River Valley Stadium Project, Claypool Electric required him to

work over 40 hours in a workweek, but gave him compensatory time

instead of legal tender. Whitlatch Affidavit, ¶¶ 7-9. According to

plaintiff Whitlatch, his project manager on the River Valley Stadium

Project advised him that Claypool Electric was eliminating all

11Plaintiff Whitlatch “was employed by Defendants originally as a

journeyman electrician construction worker and then as a crew leader/foreman

construction worker.” Whitlatch Affidavit, ¶ 1.

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overtime payments. Id. at ¶ 7. In total, plaintiff Whitlatch avers

that he worked approximately 20 hours of overtime, but was permitted

to take only approximately 12 hours of paid time off, paid at straight

time. Id. at ¶ 10. Plaintiff Whitlatch also avers that he knows that

Claypool Electric required 3 or 4 other employees working on the same

project to accept compensatory time in lieu of payment in legal tender

for overtime hours. Id. at ¶ 11. 

Similarly, plaintiff Cox12 avers that, while working on the South

Gallia High School Athletic Complex Project, his project manager

advised him that “Claypool was eliminating any and all overtime

payments for work.” Id. at ¶ 2. Nevertheless, plaintiff Cox avers,

he “was required to work hours in excess of 40 hours per workweek, but

was not compensated in legal tender for that time” and instead worked

for compensatory time. Id. at ¶¶ 3-4. In total, plaintiff Cox avers

that he worked approximately 5 hours of overtime, receiving only 3

hours of paid time off. Id. at ¶ 5. Plaintiff Cox also avers that he

knows that Claypool Electric required at least one other employee13 on

the South Gallia High School Athletic Complex Project to work in

excess of 40 hours per workweek and required that employee to accept

compensatory time in lieu of legal tender for those overtime hours. 

Id. at ¶ 6.

However, although plaintiffs Whitlatch and Cox offer evidence of

12Plaintiff Cox “was employed by Defendants as an apprentice electrician

construction worker for several years until [he] was laid off in or about

December 2011.” Cox Affidavit, ¶ 1.

13Plaintiff Cox actually avers that he knows of “at least one other

employees” who worked on the same project and “were required” to work overtime

and “were required to accept compensatory time[.]” Id. at ¶ 6 (emphasis

added). The Court will assume that this confusing statement refers to only

one employee.

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Claypool Electric’s alleged failure to compensate them and 4-5

unidentified individuals in legal tender for overtime hours, the Court

is not persuaded that plaintiffs have demonstrated the existence of a

widespread discriminatory plan. For example, plaintiff Whitlatch and

Cox identify overtime irregularities at two different job sites, but

it is undisputed that both the River Valley Stadium Project and the

South Gallia High School Athletic Complex Project were part of the

same project and were handled by the same project leader. Affidavit

of Greg Davis, ¶ 5 (“Davis Affidavit”), attached to Defendants’

Memorandum in Opposition to Plaintiffs’ Motion to Conditionally

Certify the Case as a Collective Action, Doc. No. 14 (“Memo. in Opp.

to Motion to Conditionally Certify”). Defendants also offer

uncontroverted evidence that Claypool Electric has, on average, forty

different work sites that are supervised by between eight and eleven

project managers. Id. at ¶ 4. Against this backdrop, the Court is

not convinced that, even under the lenient conditional certification

standard, the alleged actions of one project manager at two work sites

evidence a widespread discriminatory policy by Claypool Electric. 

Similarly, the alleged number of affected employees (two

plaintiffs plus four or five unidentified employees) and actual hours

of disputed overtime (20 hours alleged by plaintiff Whitlatch and 5

hours alleged by plaintiff Cox) do little to suggest a widespread

disciminatory policy. For example, although there may be seven

employees affected by an impermissible overtime issue, plaintiffs do

not explain or provide evidence that this number constitutes even a

moderate showing of a common policy. Instead, the uncontroverted

evidence establishes that seven employees represents, at most,

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approximately five percent of at least 140 electricians employed by

defendants. See Davis Affidavit, ¶ 4.14 At least one other court has

held that a similarly low percentage was insufficient to warrant

finding a common policy at even the lenient conditional certification

stage. See Flores v. Lifeway Foods, Inc., 289 F. Supp. 2d 1042, 1046

(N.D. Ill. 2003) (finding that four percent of a defendant’s work

force “is not even a ‘modest factual showing’ of a common policy or

plan, as that term has been used in other cases”). This low

percentage, combined with the fact that plaintiffs offer no affidavits

from potential plaintiffs, see Heaps, 2011 U.S. Dist. LEXIS 40089, at

*6, militates against a finding of a widespread common policy.

Finally, plaintiffs have not persuaded the Court that the

putative comp time class is a “manageable class.” Lewis, 789 F. Supp.

2d at 868. For example, the Court is troubled by plaintiffs’

expansive definition of this putative class. See Complaint, ¶ 20. 

Specifically, plaintiffs ask this Court to conditionally certify a

class of “[a]ll current and former Claypool Electric, Inc. employees”

who received paid time off in lieu of monetary compensation at the

rate of one and one-half times that employee’s regular rate of pay. 

Id. Stated differently, this class definition suggests no boundaries

14The record suggests that this percentage may actually be lower than

five percent. For example, the putative comp time class is not limited by

title, i.e., the class encompasses all sorts of Claypool Electric employees. 

See Complaint, ¶ 13 (alleging that Claypool retains employees who perform

construction and clerical work), ¶ 20 (defining putative comp time class). 

Although plaintiffs offer no evidence as to the actual size of this putative

class, defendants provide uncontroverted evidence that Claypool Electric

employs “more than 140 electricians.” Davis Affidavit, ¶ 4. Construing this

information as a whole, the total number of employees presumably exceeds the

140 electricians identified by defendants.

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and is unlimited in time15 and job title and includes former and

current employees; in short, there is no indication that it is a

manageable class. Although plaintiffs argue that the Court “is

empowered to re-shape the classes to an acceptable breadth” if it does

not approve of the classes as alleged, Reply in Support of Motion to

Conditionally Certify, pp. 18-19, plaintiffs provide no guidance as to

what would be a manageable comp time class in this case. In sum, the

Court cannot conclude that plaintiffs have made even a modest factual

showing sufficient to establish that conditional certification of the

comp time class is warranted.16 

c. Weighted Average Class

According to plaintiffs, Claypool Electric, when compensating

employees for overtime work, must pay employees the weighted average

of pay rates when an employee works at two or more nonovertime rates

of pay during a single workweek. See, e.g., Complaint, ¶¶ 49-52

(citing, inter alia, 29 C.F.R. § 778.115, which addresses “[e]mployees

working at two or more rates”). In this case, plaintiffs seek to

conditionally certify a class of “[a]ll current and former Claypool

Electric, Inc. employees whose overtime rate of pay was not calculated

by using the weighted average of all hourly rates paid in one workweek

[(“weighted average class”).]” Complaint, ¶ 20. In attempting to

15Defendants suggest that, in the event of conditional certification,

the Court limit the statute of limitations to two years. Memo. in Opp. to

Motion to Conditionally Certify, pp. 16-18.

16In so concluding, the Court need not, and does not, address additional

evidence offered by defendants that purports to refute plaintiffs’ evidence. 

See, e.g., Davis Affidavit, ¶ 6 and Exhibit C attached thereto. See also

Severtson v. Phillips Beverage Co., 141 F.R.D. 276, 280 (D. Minn. 1991) (“The

fact that [plaintiffs’] allegations are disputed by defendants does not mean

that plaintiffs have failed to establish a colorable basis for their claim

that a class of similarly situated plaintiffs exist.”). 

28

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make the necessary modest factual showing, plaintiffs offer the

Rutledge Affidavit. This evidence, however, suffers from the same

defect as did the Whitlatch Affidavit in connection with the

sufficiency of the evidence as to the crew leader class. More

specifically, plaintiff Rutledge offers evidence that he occasionally

worked in excess of forty hours per week at different rates of pay,

but he was paid at a lower private-hour wage rate rather than at the

weighted average of his higher public-hour wage rate and private-hour

rate. Rutledge Affidavit, ¶¶ 3-9.17 However, plaintiff offers no

evidence that there exists other similarly situated employees who were

not paid a weighted average of all hourly rates paid in one workweek. 

Accordingly, plaintiffs have not made even a modest factual showing

that plaintiff Rutledge is similarly situated to other employees. 

Under these circumstances, conditional certification of the weighted

average class is not appropriate. 

2. Discovery and notice

In the absence of conditional class certification, plaintiffs’

request for production of addresses of potential collective action

members, Motion to Conditionally Certify, pp. 17-18, and request for

approval of proposed notice to the classes, id. at 18, will not be

addressed.

III. PLAINTIFFS’ MOTION TO TOLL

Similarly, and in light of the recommendation that the Motion to

Conditionally Certify be denied, Plaintiffs’ Motion to Toll is

likewise moot and will not be addressed.

17As discussed supra, the Court has considered the portion of Paragraph

3 of the Rutledge Affidavit that pertains to plaintiff Rutledge.

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WHEREUPON, it is RECOMMENDED that plaintiffs’ Motion to

Conditionally Certify the Case as a Collective Action, Doc. No. 8, be

DENIED. It is FURTHER RECOMMENDED that Defendants’ Motion to Strike

Certain Paragraphs of Plaintiffs’ Affidavits, Doc. No. 13, be GRANTED

in part and DENIED in part. Specifically, it is RECOMMENDED that the

motion be GRANTED as to Paragraphs 5 and 6 of the Whitlatch Affidavit;

GRANTED as to Paragraph 3 of the Rutledge Affidavit to the extent that

it refers to other employees and to Paragraph 10 of the Rutledge

Affidavit; but DENIED as to Paragraph 11 of the Whitlatch Affidavit

and as to Paragraph 6 of the Cox Affidavit.

Finally, it is RECOMMENDED that plaintiffs’ Motion for an Order

Equitably Tolling the FLSA Statute of Limitations for Potential Opt-In

Plaintiffs, Doc. No. 25, be DENIED as moot.

If any party seeks review by the District Judge of this Report

and Recommendation, that party may, within fourteen (14) days, file

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part

thereof in question, as well as the basis for objection thereto. 28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections

must be filed within fourteen (14) days after being served with a copy

thereof. Fed. R. Civ. P. 72(b). 

The parties are specifically advised that failure to object to

the Report and Recommendation will result in a waiver of the right to

de novo review by the District Judge and of the right to appeal the

decision of the District Court adopting the Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation

30

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of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United

States v. Walters, 638 F.2d 947 (6th Cir. 1981).

December 17, 2012 s/Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

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